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April 15, 1992

PATRICIA BARRETT SNYDER, Plaintiff, against BYRON Major, M.D. and BYRON Major P.C. Defendants. PATRICIA BARRETT SNYDER, Plaintiff, -against- NATIONAL UNION FIRE INSURANCE COMPANY, Defendant.

The opinion of the court was delivered by: KIMBA M. WOOD



 Plaintiff moves for a declaratory judgment that Defendant National Union Fire Insurance Company ("National Union") is liable to Plaintiff for any judgment she obtains against Defendants Byron Major and Byron Major, P.C., for damages pertaining to certain events on December 10, 1985. Defendant National Union cross-moves against National Union for a declaratory judgment that it is not liable for any judgment obtained pertaining to those events. For the reasons stated below, defendant's motion is granted.


 On December 10, 1985, Patricia Barrett Snyder visited the Manhattan medical office of her plastic surgeon, Dr. Byron Major. The appointment was occasioned by certain problems Snyder was having with her breast implants. Dr. Major had performed the breast implant surgery in 1981.

 After examining Ms. Snyder, Dr. Major administered valium and ketamine to her, and these drugs sedated her. This was done, Dr. Major claims, as a prelude to performing a painful capsulotomy procedure (involving manual manipulation of the breast area surrounding the implants) to reduce the hardness in her breasts. At some point subsequent to this, and while Ms. Snyder was still at least partially sedated, Dr. Major and Ms. Snyder had sexual intercourse. At present, there are disputes among the parties as to whether Ms. Snyder made sexual advances to Dr. Major, whether she consented to the intercourse, and whether Dr. Major believed she consented to the intercourse.

 This event led to proceedings against Dr. Major in (at least) three fora: criminal proceedings in the Supreme Court of the State of New York; disciplinary proceedings before a Hearing Committee of the New York State Board for Professional Medical Misconduct; and this diversity-based tort suit. In the Supreme Court of the State of New York, a jury found Dr. Major guilty of sexual abuse in the first degree; the conviction was later reversed and remanded for a new trial, on the basis of an evidentiary error by the trial court. People v. Byron Major, 154 A.D.2d 225, 545 N.Y.S.2d 923 (App. Div., 1st Dept. 1989) (reversible error to admit testimony of expert on question of whether alleged rape victim consented, where testimony offered for sole purpose of bolstering alleged victim's testimony). The district attorney declined to retry Dr. Major.

 The New York State Board of Regents, on August 24, 1988, issued an Order revoking Dr. Major's medical license, and found him guilty of a number of charges of professional misconduct, predicated on this incident and unrelated incidents. See In the Matter of Byron J. Major, Jr., Petitioner v. Board of Regents of the University of the State of New York, 160 A.D.2d 1041, 553 N.Y.S.2d 879 (App. Div., 3d Dept., 1990) (upholding Board of Regents' revocation).

 Ms. Snyder filed a complaint against Major in 1985 alleging medical malpractice, assault and battery, negligence, rape, sexual abuse, reckless endangerment, wrongful drug injection, failure to obtain informed consent, and intentional infliction of emotional distress. In 1987, she filed a separate complaint against National Union, Byron's insurer during the relevant period. In 1988, Judge Leisure of this Court granted summary judgment for plaintiff on her claim that National Union was obligated to defend Major, but denied plaintiff's motion for a declaratory judgment that National Union was liable for damages incurred by Major in Snyder's suit. Snyder v. National Union Fire Ins. Co., 688 F. Supp. 932 (S.D.N.Y. 1988). These cases were transferred to me in 1988. A verified amended complaint was filed in July of 1991. This complaint alleges medical malpractice, including negligence, gross negligence or recklessness, breach of fiduciary duty, failure to give informed consent, and reckless endangerment.

 The motions presently before the Court concern the scope of the National Union policy that insured Dr. Major at the time of the event underlying this litigation. In particular, National Union contends that if there were a damage award against Major in this case, National Union's policy does not cover it, for two reasons: (i) the injury complained of in this case did not result from a "medical incident" within the meaning of the policy, and (ii) any liability in this case would arise from the performance of a criminal act, and is therefore excluded by Exclusion F of the policy. Snyder opposes National Union on both of these issues, and further argues that National Union is procedurally precluded from denying liability. *fn1"


 Nation Union agreed to cover Major during the relevant period for "all sums which [Major] shall become legally obligated to pay as damages because of injury, including death, to which this insurance applies caused by a medical incident covered herein. . . ." The policy's Definitions provide that a "medical incident" is any act or omission:

 (1) in the furnishing of or failure to furnish health care services including but not limited to the furnishing of food, beverages, medications or appliances in connection with such services . . .

 Any such act or omission together with all related acts or omissions in the furnishing of such services to any such person shall be ...

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